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Thomas Crofts[*]
Drawing lessons from Germany’s reform process for Western Australia.
Reform of the laws on prostitution once again came on the agenda in Western Australia as the date for the expiration of the Prostitution Act 2000 (WA) approached. This Act was planned to be an interim measure to address the immediate problems perceived with street prostitution while legislation comprehensively regulating the sex industry was drafted after community consultation. New regulations have not, however, been created and the life of this Act has now been extended by one year by the Prostitution Amendment Act 2002 (WA) while in the meantime the government of Western Australia prepares a Green Bill for public comment.[1] Coincidentally, in January 2002, Germany reformed its prostitution laws and in the light of Western Australia’s plans it is worthwhile to look at why the legal regulation of prostitution in Germany was seen as unsatisfactory and what reforms were enacted.
The views expressed during reform discussions in Germany ranged from measures to treat this occupation as any other, to ending the discriminatory treatment of this occupation, to only implementing minor reforms. This article explores the reasons for, and effects of, the changes made to the offences of promoting prostitution and pimping as well as the changes to the civil law regarding the enforceability of legal transactions relating to sex workers. It will then address areas still thought to be in need of reform and will question whether there are any useful insights into reform possibilities and pitfalls for Western Australia.
In Germany it is not and was not a criminal offence to actually sell sexual services, but prostitution was also not a legally recognised occupation and thus did not enjoy the protection granted to other occupations under the Constitution.[2] The fundamental attitude towards prostitution, as reflected in the criminal law, was that no one would freely choose to work as a prostitute and, therefore, people need protection from this work.[3] The law aimed not only to penalise anyone who exploited a prostitute, but also those who for commercial gain encouraged a person to work as a prostitute or discouraged them from leaving this line of work.
Two offences in particular, promoting prostitution (§180a Criminal Code) and pimping (§181a Criminal Code) were designed to achieve this aim. The promotion of prostitution, defined as encouraging prostitution through any measures which go beyond the provision of home, accommodation or place to stay was an offence under §180a of the Criminal Code. This offence made a brothel owner who provided anything beyond mere accommodation for the benefit of prostitutes, such as condoms, liable to punishment.[4] This was obviously an undesirable situation in the light of the need for the promotion of safe sex. The rationale of this approach was that a clean and safe environment was less likely to discourage a person from leaving this line of work, whereas providing nothing more than basic conditions would not be an incentive to stay.[5] Supervising the carrying out of prostitution, determining the time, place, extent or any other circumstance of the carrying out of prostitution for pecuniary benefit or taking any other measures to hinder a person from giving up prostitution amounted to the offence of pimping under §181a Criminal Code. This offence did not distinguish whether the arrangement of sexual services or supervision was undertaken in agreement with the prostitute or regardless of the will of the prostitute.
The paternalistic aim of these criminal provisions was to remove all barriers to a person leaving this line of work, however, the absurd effect was a fostering of a poor working environment for prostitutes, increasing dependency and liability to exploitation, while doing nothing for those unable or unwilling to give up this work. These offences also had the result that there was a de facto bar on a prostitute’s access to social insurance schemes as an employee because brothel owners or those arranging services did not register their employees for fear of prosecution under §180a or §181a Criminal Code. This meant, for instance, regarding health insurance that a prostitute was faced with either taking out private health insurance, which usually entailed a higher ‘risk premium’, or keeping their occupation a secret. A prostitute also had no employee pension or unemployment entitlements. A further consequence of not treating prostitutes as employees was that they were liable to pay tax at a higher rate than that applicable to the income of employees of other occupations, as income from prostitution was deemed not to stem from ‘participation in the general economic exchange’.[6]
The left wing parties recognised the need for reform of these ill-advised provisions, however, they disagreed on the extent of reform necessary. The opposition Party of Democratic Socialism saw no need for the continued existence of §180a and 181a Criminal Code. They argued that the sex industry should be treated in the same way as any other occupation and that the general provisions of criminal law were adequate to protect people from exploitation and violence.[7] The governing coalition parties, the Social Democratic Party of Germany and Alliance 90/The Greens were in favour of rewording the provisions such that the bars to providing good working conditions and access to social insurance schemes were removed while retaining the specific offences relating to exploitation of people working as prostitutes.[8] The conservative opposition, the Christian Democratic Union and the Christian Social Union, were opposed to such reform moves as they argued that the measures would not improve the position of prostitutes but rather improve the situation of pimps and brothel owners, pushing prostitutes further into dependence and hindering the powers of the police and prosecution service to control and intervene.[9]
The result of the reform debate was that the offence in §180a Criminal Code was reworded to remove the penalisation of promoting prostitution through the provision of anything other than accommodation (§180a I Nr. 2 deleted), while still penalising the provision of accommodation to an under 18 year old (§180a II Nr. 1 retained) or keeping a person in personal, economic dependence for the purposes of prostitution (§180a I renumbered). The offence of pimping in §181a was also amended so that it now no longer covers the mere arrangement of sexual intercourse but focuses only on those who, in so doing, hinder the personal or economic freedom of movement of a person.
These reforms aim to foster better working conditions and the autonomy of prostitutes, allowing them to work together without the need for pimps and without the risk of prosecution. A vital factor in empowering prostitutes is guaranteeing their access to social insurance schemes. This now means that rather than seek to discourage conditions which may hinder a person leaving the occupation there is a recognition that good working conditions should be fostered for those who do not want to give up this work. Meanwhile providing access to unemployment benefit and the job retraining programmes of the employment office supports those who wish to leave prostitution. The offences remaining in the Criminal Code, the amended versions of §180a and §181a, human trafficking (§180b) and serious human trafficking (§181) now clearly focus on those who bring a person to, or keep a person in, prostitution against their will. With less antagonism from the police it is also to be hoped that a better relationship between prostitutes and the police can develop and that police resources can now target cases of exploitation and under-age prostitution.
A reform of the civil law which will also have effects in the field of criminal law is a new provision to allow legal recognition of contracts for sexual services. Prior to reform prostitution had been classified by the Supreme Court of Germany as immoral.[10] This meant that at civil law any legal transaction entered into by a prostitute for sexual services was unenforceable, as according to §138 I Civil Code any legal transaction which is against good morals is void. The effect of the Supreme Court’s stance was that prostitutes could not sue for the recovery of unpaid fees for services rendered. This lack of enforceability hindered the autonomy of prostitutes and supported their dependence on pimps, because prostitutes naturally had to seek other extra-legal means of ensuring payment.
A related discriminatory effect of the classification of prostitution as immoral concerns the offence of fraud. If a client refused to pay for services received this did not amount to fraud, whereas receiving payment but not providing the service could make the prostitute liable for fraud. The key to this contradictory treatment lay in the question of monetary value. The offence of fraud under §263 Criminal Code requires the creation or perpetuation of a mistake in order to obtain a pecuniary advantage. Money clearly has a pecuniary value but because a sexual service was deemed immoral it had in the eyes of the law no monetary value and, therefore, the prostitute who was defrauded in to delivering a sexual service in the expectation of payment was held not to have suffered a pecuniary disadvantage.
This discrimination was remedied by Article 1 of the Act for the Regulation of the Legal Relations of Prostitutes which provides that an action can be brought for unpaid fees for sexual services. Contracts entered into by prostitutes are not, however, treated in the same way as other contracts; they are only enforceable by the prostitute. A client cannot then bring an action for poor or insufficient provision of the service; an especially important feature considering that the primary remedy in Germany for breach of contract is specific performance (§249 I Civil Code). Likewise a contract of employment is only enforceable by the prostitute and so, for instance, there is no requirement of giving notice when leaving an employment situation and a prostitute cannot be legally required to perform a certain task.
Allowing contracts only to be enforced by prostitutes means that prostitution is not treated in the same way as other occupations, as had been called for by the Party of Democratic Socialism. However, clearly there is a degree to which prostitution is distinct from other occupations and it is not unjust to maintain some asymmetric protection for those providing such intimate services. Prostitutes can also now enter secure contracts of employment, which may provide a degree of protection from exploitation, while guaranteeing that they will not be legally bound to work and can leave the employment situation at will.
These reforms go some way to redressing the legal and factual power imbalance by providing the prostitute with the possibility of recourse to the law to enforce payment by client and employer. If the expectations of the legislator are fulfilled and the effect of this amendment is that in practice there is less need for reliance on pimps, there would be benefits both for prostitutes and society. Prostitutes will no longer be subjected to passing over much of their income to pimps and on a societal level this could well bring about a reduction in the crime associated with prostitution.
In debating the direction of reform in Western Australia it should be questioned whether the approach taken by the Prostitution Act 2000 (WA) adequately deals with the social reality of prostitution. This Act has a distinct criminal focus and penalises, for instance, the seeking of a prostitute (s.5) or a client (s.6) in a public place or, reminiscent of the German offence of promoting prostitution, promoting employment in the prostitution industry (s.9). It also gives the police wide powers in relation to investigating those suspected of committing offences under the Act. The clear impression is that this Act deals with the public face of prostitution with the aim of keeping it hidden. It thus satisfies public discomfort with this trade without improving the situation of those working as prostitutes.
Prior to this Act, the public face of prostitution was controlled through the containment policy which was operated by successive police commissioners in Western Australia until it was revoked on 4 August 2000.[11] The German approach to the exercise of prostitution which has not been reformed, is provision for the creation of ‘exclusion zones’. In order to protect the young and public decency Article 297 of the Introductory Act to the Criminal Code authorises state governments, either directly or by delegation to local authorities, to create areas in which prostitution cannot be carried out. At a first glance this regulation seems to find a parallel in the containment policy of Western Australia, however, there are fundamental differences. In Germany the aim is to designate certain areas where prostitution cannot be carried out, but not to determine the areas in which it does take place and thus ghettoise prostitution. Indeed, it is expressly provided that it is not permitted to designate limited streets or blocks where prostitution may be carried out (Article 297(3) Introductory Act to the Criminal Code). This is in contrast to the containment policy which, as its name suggests, aimed to confine prostitution to certain areas. A further major distinguishing feature is that unlike the containment policy the exclusion zones are expressly anchored in law and are determined by the state or local government. They are not the subject of an unwritten policy with the zones determined by the Commissioner of Police on whom their existence depended.
Through criminalisation of certain aspects of prostitution the Prostitution Act 2000 (WA) takes the place of the containment policy in dealing with the public appearance of prostitution. The Prostitution Act has not, however, stopped street prostitution although it has worsened conditions for street workers. The question is then, would exclusion zones be an option for Western Australia? The advantage of the German exclusion zones is that they aim to avoid the creation of prostitution ghettos and they are determined by the local authority, which can take into account local concerns. However, the zones do raise a number of concerns and it was suggested during the recent reform debate that the provision allowing their creation be repealed.[12] The Party of Democratic Socialism argued that these zones, along with the norms of criminal law discussed above, were detracting from the autonomy of prostitutes and breeding a poor working environment. This was, they argued, because zones cause oligopoly conditions whereby those who control working space can charge exorbitant rental rates, and prostitutes who would otherwise work independently cannot leave the areas which are controlled by pimps.[13] There is also, of course, the issue of the size and place of the areas which are left un-excluded. Small zones increase the chances of exploitation as prostitutes cannot avoid pimps controlling the area. There is also the possibility that prostitutes are left with remote, unpopulated areas with the dangers to personal safety which this entails. Care must then be exercised to not ghettoise prostitution in desolate areas which could actually foster crime.
The need for exclusion or containment zones results from the perception that prostitution causes public harm which stems from the public perception that this activity is shameful or immoral. However, the aim of the German reforms was to bring the law into line with social values, ending the labelling of prostitution as immoral and normalising this occupation. In treating this as an occupation like any other it may well be the case that there will be a shift in the public’s perceptions of prostitution leading to more acceptance of prostitution and less need for any sort of exclusion or containment zone. Should any public nuisance be caused by prostitution, it should be dealt with by the general laws, rather than singling out this occupation and deeming it a public nuisance per se. Indeed, criminalisation may fuel this view of prostitution and may also foster a perception that because prostitutes are outside the law they are not deserving of the same protection as others.
The reforms undertaken by the German governing coalition parties have not created a totally new approach to dealing with prostitution but do made significant amendments to the previous situation. Although an improvement they were clearly a compromise which fell short of treating prostitution as any other occupation and thus did not go far enough in the eyes of the centre and left opposition parties. In contrast, the Christian Democratic Union and the Christian Social Union felt the reforms had gone too far. In their opinion the state cannot and should not support immoral acts and ‘prostitution is the marketing of the human intimate sphere and as such it contradicts the picture of human dignity of our Basic Law and the values held in this country’.[14] Although these conservative parties did not want to hinder good working conditions, they argued that the reform measures would only advantage pimps and brothel owners not prostitutes, and more fundamentally they did not want a change to the legal verdict that prostitution is immoral. Rather they wished to end the discriminatory treatment by also labelling the seeking of prostitutes immoral, an approach not dissimilar to that found in the Prostitution Act 2000 (WA).
Prior to reform the German approach was based on the premise that no one would choose to work as a prostitute. Taking this as the basis for regulation the law aimed to remove all barriers to a person leaving this line of work. Experience has shown, however, that this approach did more harm than good. It hindered the autonomy of prostitutes and limited the choices available to them. It led to a worse working environment and increased the dependency of prostitutes on pimps and brothel owners. The reforms accept the social reality that poor conditions do not mean that people will not start or continue to work as prostitutes but that they will work with less freedom and more chances of exploitation.
Dealing only with the public face of prostitution through criminalisation of certain activities is a cosmetic measure which neither leads to an elimination of prostitution nor does it improve the situation of those working as prostitutes. Rather than taking the evils of prostitution as the starting point for legal regulation the aim of reform of the laws in this area should be to improve the conditions for those working as prostitutes, ensuring that no one is forced to work against their will and supporting those who would leave if they had any realistic alternatives. To this end normalisation of this line of work may well empower those working as prostitutes, providing them a real choice about their occupation, while increasing public acceptance of one of the oldest occupations.
[*] Thomas Crofts teaches law at the Murdoch University School of Law, Western Australia.
[1] Prostitution Amendment Bill 2002, Introduction and First Reading, Western Australia, Hansard, 17 April 2002, p.9673. Royal Assent to the Prostitution Amendment Act 2002 (WA) was received on 28 June 2002.
[2] The Constitution protects the freedom to enter or leave an occupation under Article 12 I Basic Law.
[3] Cf Drucksache des Deutschen Bundestages (Parliamentary Paper), 14/4456, p.5
[4] Decision of the Federal Supreme Court (Bundesgerichtshof), in Neue Juristische Wochenschrift (1986), p.596.
[5] Cf. Drucksache des Deutschen Bundestages (Parliamentary Paper), 14/4456, p.5.
[6] Federal Court of Finance (Bundesfinanzgericht), in Neue Juristische Wochenschrift (1965), p.79. This judgment was based on §22Nr. 3 of the Income Tax Act (Einkommenssteuergesetz).
[7] Drucksache des Deutschen Bundestages (Parliamentary Paper), 14/7174, p.9.
[8] Drucksache des Deutschen Bundestages (Parliamentary Paper), 14/5958, p.2.
[9] Drucksache des Deutschen Bundestages (Parliamentary Paper), 14/6781, p.3.
[10] The criterion for immorality was the feeling of decency of all just and fair thinking people (from Decisions of the Imperial Court in Civil Matters (Reichsgerichts), RGZ 48, 114 at 124). Yet, despite the fact that Germans on the whole (68%) no longer regard prostitution as immoral, as evidenced by a survey conducted in May 2001 by the popular news magazine, Der Spiegel <www.spiegel.de/politik/ Deutschland/0,1518,133219,00.html> accessed 18/2/2002, the Supreme Court refused to alter its verdict on prostitution.
[11] For details on the operation of the containment policy and the recommendation that it be repealed, see for instance, Government of Western Australia, Final Report of the Community Panel on Prostitution, 1990, 3 and 5.2.
[12] Argued by the Party of Democratic Socialism and the Free Democratic Party, both in Drucksache des Deutschen Bundestages (Parliamentary Paper), 14/7174, p.9.
[13] Drucksache des Deutschen Bundestages (Parliamentary Paper), 14/4456, p.6.
[14] Drucksache des Deutschen Bundestages (Parliamentary Paper), 14/6781, p.2.
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